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2008 DIGILAW 559 (GAU)

Keshab Kalita v. State of Assam

2008-08-01

ASHOK POTSANGBAM, J.CHELAMESWAR

body2008
JUDGMENT Jasti Chelameswar, C.J. 1. The writ petition is filed with the prayer as follows: In the premises it is therefore prayed that your lordship may be pleased to admit this petition, call for the record and issue a rule calling upon the respondents to show cause as to why a writ in nature of Mandamus should not be issued directing the respondent Nos. 4 to 7 not to harass the petitioners and his family members and also direct the respondent No. 2 to conduct an enquiry against the officers who are indulging the respondent Nos. 6 and 7 and other anti-social elements in illegal activities of harassing the petitioner and family members and also for a direction to the respondent No. 2 to protect the lives and property of the petitioner or as to why any other appropriate Writ or Writs, order or direction should not be issued so as to give complete relief to the petitioner and upon causes being shown and upon hearing the parties make the rule absolute and or may be pleased to pass any other order or orders as your lordships may deem fit and proper. 2. The case of the petitioner is that the petitioner has been in possession of land admeasuring 1B 1K 11Ls under Dag No. 65 alongwith 6Ls of Dag No. 66 of K.P. Patta No. 9 of village Dispur under Mouza Beltola in the district of Kamrup, Assam. It is the further assertion of the petitioner that he has been in uninterrupted possession of the said property since 1976. The petitioner does not assert his title in the property. 3. Though it may not be strictly necessary for us to narrate for the purpose of granting the relief or otherwise in the writ petition, we indicate the nature of the controversy involved in the matter in the year 1991 one Dilip Singh, father of the 6th respondent herein, initiated a proceeding under Section 144, Cr.P.C. against the writ petitioner complaining that the petitioner was trying to encroach the property in dispute herein. It is not very clear as to what finally happened to those proceedings. 4. Again in the year 2000 the abovementioned dilip Singh filed Title Suit No. 16/2000 before the Civil Judge, Senior Division No. 2, Kamrup, Guwahati. A copy of the plaint is made available to us. It is not very clear as to what finally happened to those proceedings. 4. Again in the year 2000 the abovementioned dilip Singh filed Title Suit No. 16/2000 before the Civil Judge, Senior Division No. 2, Kamrup, Guwahati. A copy of the plaint is made available to us. The suit was filed with the prayer as follows: It is, therefore, prayed that your Honour would be pleased to pass a Decree for: (i) Declaration of right, title and interest of the plaintiff over the suit land as described in the Schedule below. (ii) Recovery of khas possession of the suit land described in the schedule below by putting the plaintiff in khas possession of the suit land by evicting the defendant Nos. 1 and 2 their servants, agents, employees along with their men and materials by demolishing all the structures of the defendant Nos. 1 and 2 and their men/tenants over the suit land as described in the schedule below. (iii) Issue a precept to the defendant Nos. 3, 4 and 5 to correct volume No. 1, Book No. 48/80, pages 91 to 96 of the Sale Deed No. 4601 dated 20.4.1979 maintained in the Office of the Senior Sub-Registrar of the Office of the District Sub-Registrar Kamrup, Guwahati by inspecting K.P. Patta No. 76 in place of K.P. Patta No. 70, Dag No. 65 and 66 in place of Dag No. 165 and 166 at Page No. 7 line 2 of the Schedule of the said Sale Deed and also to correct inserting the Dag No. 65 and 66 in place of Dag No. 165 and 166 and Patta No. 76 in place of K.P. Patta No. 70 in the subsequent paras of the schedule of the said deed. (iv) A permanent injunction restraining defendant their servants, agents, workmen, employees from the disturbing peaceful possession of the plaintiff of the suit land in any manner and from causing any kind of nuisance, obstruction, annoyance and threatening to the plaintiff in respect of the suit land as described in the schedule below after putting the plaintiff in khas possession of the suit land. (v) Cost of the suit. (v) Cost of the suit. In substance, it is a suit for declaration of the title of the plaintiff, recovery of the possession and a permanent injunction restraining the defendants, of which the petitioner herein is the first defendant, along with certain other reliefs, the details of which may not be necessary for the present. The suit property is described in the schedule of the plaint as follows: SCHEDULE All that a plot of land measuring 4 kathas 12 1/2 lechas, covered by K.P. Patta No. 76, Dag No. 65 (4 kathas 4 lechas) and Dag No. 66 (SV2 lechas) of Village Dispur Mouza Beltola District Kamrup and bounded as follows: District - Kamrup and bounded as follows : North - Land of M/S. City Printers. South - Land of Choudhury Coal Depot. East - Land of Topa Ram Kochari of Dag No. 66 of K.P. Patt No. 76 West - Zoo Road. 5. It appears that initially the plaintiff obtained an ex parte order in the suit which even according to the petitioner was eventually vacated at the petitioner's instance by the trial court by its order dated 4.11.2003. Neither of the orders are produced before us, therefore, it is not possible to say what exactly was the ex-parte order that was passed. 6. During the pendency of the suit the plaintiff Dilip Singh died, it appears that on 12.1.2004. Thereafter the 6th respondent, who is the son of the original plaintiff, along with some other members of the family filed applications to implead them as legal representatives of the deceased plaintiff and they were in fact brought on record as the [legal heirs of the original plaintiff. 7. The substance of the allegation in the writ petition is that the respondent Nos. 4 and 5, the police officers, and the 7th respondent made illegal attempts to evict the petitioner from the property in dispute. It is the case of the petitioner that the 7th respondent is trying to forcibly evict the petitioner from the property in dispute. Three reports on 1.10.2007, 4.10.2007 and 10.10.2007 were lodged before the 5th respondent. In spite of such reports the respondent did not take any action to protect the petitioner. The relevant portion of the pleadings filed by the petitioner are as follows: 10. That the petitioners state that the respondent Nos. 6 and 7, in collusion with SULFA and respondent Nos. In spite of such reports the respondent did not take any action to protect the petitioner. The relevant portion of the pleadings filed by the petitioner are as follows: 10. That the petitioners state that the respondent Nos. 6 and 7, in collusion with SULFA and respondent Nos. 4 and 5 are constantly threatening the petitioners and are trying to implicate them in false case. The respondent Nos. 6 and 7 having muscle and money power and they had taken help of the police personnel and the police also taking part with the respondent Nos. 6 and 7 are harassing the petitioner without following any due procedure of law which is illegal and arbitrary and same is liable to be interfered by this Hon'ble court. 11. That the petitioners state that the respondent No. 6 are hand in glove with SULFA and the respondent Nos. 4 and 5 and other police personal instead of discharging their official duties are involved in wrong practice of harassing the petitioner in what so ever manner possible. The respondent Nos. 4 and 5 who arer public servants instead of doing duty in maintaining law and order have become a party to the illegal. action of the respondent Nos. 6 and 7 and other anti-social elements. It is not understood, how public servant can exercise their power at the whims and fancies of persons who have criminal antecedents. It is the duty of the respondent Nos. 4 and 5 and other police officers to protect the interest of citizens, but the respondent Nos. 4 and 5 for the best known to them, instead of providing protection to the petitioner, are indulging themselves in illegal practice in harassing the petitioner who is innocent person, without any procedure of law. 8. It is the case of the 7th respondent that he wanted to purchase the property in dispute and as the petitioner is in possession of the property the petitioner was paid some amount to vacate the property and thereafter he entered into an "agreement of sale" with the 6th respondent, one of the legal heirs of the deceased original plaintiff Dilip Singh. According to the 7th respondent the petitioner having taken money from the 7th respondent vacated the possession of the property and handed over to him. We may hasten to add that each of the allegations of the 7th respondent is disputed by the petitioner. According to the 7th respondent the petitioner having taken money from the 7th respondent vacated the possession of the property and handed over to him. We may hasten to add that each of the allegations of the 7th respondent is disputed by the petitioner. 9. The writ petition was admitted on 7.5.2008. While admitting the writ petition this Court directed that status quo as on that day shall be maintained until further orders. 10. It is the case of the petitioner that taking advantage of the status quo order the 7th respondent in collusion with the 4th and 5th respondent has illegally dispossessed the petitioner. 11. Various affidavits and counter affidavits have been filed by various parties. Every fact is a disputed fact pertaining to the title and possession of the property in dispute which cannot be and/or not normally adjudicated in a proceeding under Article 226 of the Constitution of India. 12. From the various affidavits filed we are prima facie of the opinion that the role played by the 4th and 5th respondents in the whole litigation does not appear to be wholesome. 13. In the abovementioned circumstances we are of the opinion that the ends of justice would be met in the present case by making the following order: (i) That Shri Pran Bora be appointed as an Advocate Receiver for protecting and administering the property during the pendency of the abovementioned Title Suit No. 16/2000. (ii) As there appears to be a scramble for possession of property and from the record it appears admittedly that the suit was filed for eviction of the petitioner and others from the disputed property by the 6th respondent and the 7th respondent's claim over the property, if any, can only be through the 6th respondent and the other members of the 6th respondent's family, we direct the 4th and 5th respondents to hand over the possession of the property to the Advocate Receiver by evicting all persons in physical possession of the property. The 4th and 5th respondents shall thereafter not interfere with the civil dispute between the petitioner and the 7th respondent except to protect the property from further encroachment, as may be directed from time to time by the Advocate Receiver. The 4th and 5th respondents shall thereafter not interfere with the civil dispute between the petitioner and the 7th respondent except to protect the property from further encroachment, as may be directed from time to time by the Advocate Receiver. (iii) It is open for the petitioner to move an appropriate application before the civil court in the abovementioned Title Suit to establish that the petitioner was dispossessed of the property in dispute during the pendency of the present writ petition by the 7th respondent. On an appropriate examination of such a petition the trial court shall pass an appropriate order in accordance with law. (iv) We also make it clear that since the 7th respondent is not a party to the suit it is open to the 7th respondent to initiate such legal proceedings as advised to establish his rights in the property in dispute. 14. With the above directions the writ petition is disposed of. 15. The Receiver shall be initially paid an amount of Rs. 25,000 (Rupees twenty five thousand) to be shared equally by the petitioner and the 7th Respondent. The final fee of the Receiver shall be fixed by the court on an application by the Receiver as and when the abovementioned suit is disposed of. Petition disposed of.